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Powers of attorney are are useful in avoiding guardianships and allowing for a trusted person to handle someone's affairs in the case of incapacity. A power of attorney is created by an individual (the “principal”) executes a power of attorney document giving a trusted person called an "attorney-in-fact” the authority and ability to act as the agent of the principal when dealing with other persons or entities. The written document is proof to others that the attorney-in-fact has the principal's consent to handle all matters specified in the power of attorney just as if the principal had signed.
There are limits on what an attorney in fact may do. Florida law provides that the attorney-in-fact may do whatever the power of attorney document authorizes, but the attorney-in-fact may not do certain things, such as revoke a or vote for the principal.
A durable power of attorney creates powers in the attorney in fact that it are not affected by the subsequent incapacity of the principal except as provided in Florida Statute 709.08. The beauty of a durable power of attorney is that it will continue to be valid even if the principal is incompetent.
All powers of attorney expire on the principal's death, on revocation of the power by the principal, or upon a formal adjudication of the principal's incapacity.
The attorney-in-fact must be an individual who is at least 18 years old and of sound mind, a financial institution with trust powers and a place of business in Florida, or a nonprofit corporation meeting the requirements of F.S. 709.09.
A durable power of attorney must be signed and witnesses just like a deed which requires two witnesses and a notary public.
Florida Healthcare Advance Directives
Healthcare Surrogate Form
Florida law provides for a person to appoint a health care surrogate to make medical decisions, specifically including decisions regarding the use of life-prolonging procedures. The appointment of a healthcare surrogate (along with a durable power of attorney) can in most cases avoid the expense and rigor of having to file a guardianship proceeding for someone who has become incapacitated and cannot make healthcare decisions for themselves. An advance care directive that was validly signed in another state is valid in Florida.
While still mentally competent, a person may appoint a healthcare surrogate by signing a legal instrument referred to as a “designation of healthcare surrogate” in an form as set out by Florida law.The designation must be signed by the principal in the presence of two subscribing adult witnesses, at least one of whom is not a spouse or blood relative of the principal. Neither witness can be the designated surrogate.
An copy of the health care surrogate designation should be given to all medical providers.
The designation can be revoked by the principal's written revocation, execution of a new designation, destruction of the existing designation by the principal or verbal expression of a desire that the designation be revoked. A health care surrogate designation naming the spouse as the surrogate will automatically be revoked if the client and the spouse divorce.
Florida law provides for the determination of when the surrogate is empowered to act as follows:
(1) A principal is presumed to be capable of making health care decisions for herself or himself unless she or he is determined to be incapacitated. Incapacity may not be inferred from the person's voluntary or involuntary hospitalization for mental illness or from her or his mental retardation.
(2) If a principal's capacity to make health care decisions for herself or himself or provide informed consent is in question, the attending physician shall evaluate the principal's capacity and, if the physician concludes that the principal lacks capacity, enter that evaluation in the principal's medical record. If the attending physician has a question as to whether the principal lacks capacity, another physician shall also evaluate the principal's capacity, and if the second physician agrees that the principal lacks the capacity to make health care decisions or provide informed consent, the health care facility shall enter both physician's evaluations in the principal's medical record. If the principal has designated a health care surrogate or has delegated authority to make health care decisions to an attorney in fact under a durable power of attorney, the facility shall notify such surrogate or attorney in fact in writing that her or his authority under the instrument has commenced, as provided in chapter 709 or s. 765.203.
(3) The surrogate's authority shall commence upon a determination under subsection (2) that the principal lacks capacity, and such authority shall remain in effect until a determination that the principal has regained such capacity. Upon commencement of the surrogate's authority, a surrogate who is not the principal's spouse shall notify the principal's spouse or adult children of the principal's designation of the surrogate. In the event the attending physician determines that the principal has regained capacity, the authority of the surrogate shall cease, but shall recommence if the principal subsequently loses capacity as determined pursuant to this section.
(4) A determination made pursuant to this section that a principal lacks capacity to make health care decisions shall not be construed as a finding that a principal lacks capacity for any other purpose.
(5) In the event the surrogate is required to consent to withholding or withdrawing life-prolonging procedures, the provisions of part III shall apply.
Florida law provides for the powers of the healthcare surrogate as follows:
(1) The surrogate, in accordance with the principal's instructions, unless such authority has been expressly limited by the principal, shall:
(a) Have authority to act for the principal and to make all health care decisions for the principal during the principal's incapacity.
(b) Consult expeditiously with appropriate health care providers to provide informed consent, and make only health care decisions for the principal which he or she believes the principal would have made under the circumstances if the principal were capable of making such decisions. If there is no indication of what the principal would have chosen, the surrogate may consider the patient's best interest in deciding that proposed treatments are to be withheld or that treatments currently in effect are to be withdrawn.
(c) Provide written consent using an appropriate form whenever consent is required, including a physician's order not to resuscitate.
(d) Be provided access to the appropriate medical records of the principal.
(e) Apply for public benefits, such as Medicare and Medicaid, for the principal and have access to information regarding the principal's income and assets and banking and financial records to the extent required to make application. A health care provider or facility may not, however, make such application a condition of continued care if the principal, if capable, would have refused to apply.
(2) The surrogate may authorize the release of information and medical records to appropriate persons to ensure the continuity of the principal's health care and may authorize the admission, discharge, or transfer of the principal to or from a health care facility or other facility or program licensed under chapter 400 or chapter 429.
(3) If, after the appointment of a surrogate, a court appoints a guardian, the surrogate shall continue to make health care decisions for the principal, unless the court has modified or revoked the authority of the surrogate pursuant to s. 744.3115. The surrogate may be directed by the court to report the principal's health care status to the guardian.
Florida Living Wills
A “living will” is a written or verbal statement wherein a mentally competent person communicates the decision and desire that he or she does not want his or her life artificially prolonged by use of life support equipment or other extraordinary medical means. F.S. 765.303 provides suggested language for a living will to state that the person making the living will "... willfully and voluntarily make known my desire that my dying not be artificially prolonged under the circumstances set forth below, and I do hereby declare that, if at any time I am incapacitated and I have a terminal condition or (initial) I have an end-stage condition or (initial) I am in a persistent vegetative state and if my attending or treating physician and another consulting physician have determined that there is no reasonable medical probability of my recovery from such condition, I direct that life-prolonging procedures be withheld or withdrawn when the application of such procedures would serve only to prolong artificially the process of dying, and that I be permitted to die naturally with only the administration of medication or the performance of any medical procedure deemed necessary to provide me with comfort care or to alleviate pain.It is my intention that this declaration be honored by my family and physician as the final expression of my legal right to refuse medical or surgical treatment and to accept the consequences for such refusal."
A living will controls medical treatment when a patient does not have a reasonable medical probability of recovering from a medical condition, and the condition is 'terminal' in that the patient is expected to die or be in a persistent vegetative state.
The living will must be signed in the presence of two witnesses, at least one of whom should be neither a blood relative nor a spouse.